Matal v. Tam

Judge(s)/Court Below: ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which ROBERTS, C. J., and THOMAS and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., took no part in the consideration or decision of the case.

The disparagement clause of 15 U. S. C. §1052(a), which forbids the registration of trademarks containing possible “disparage . . . or bring . . . into contemp[t] or disrepute” to any “persons,” is viewpoint regulation of private speech that fails First Amendment scrutiny.

Respondent’s trademark application was denied by Petitioner, the Patent and Trademark Office, because it contained an historically racially offensive slur: “The Slants.” Petitioner cited to 15 U. S. C. §1052(a) (the "Disparagement Clause"), which forbids the registration of trademarks containing possible “disparage . . . or bring . . . into contemp[t] or disrepute” to any “persons.” The Federal Circuit Court of Appeals determined that the Disparagement Clause facially violated the First Amendment, because it regulates expressive conduct in a manner that does not satisfy strict scrutiny. The U.S. Supreme Court agreed. The Court, by majority, determined that trademarks are private speech and not government speech, because Petitioner does not create the content that it reviews in trademark registrations. The Court also noted that once the trademark is registered, Petitioner is prohibited from removing the trademark based on viewpoint. The remainder of the Court’s analyses regarding other narrow doctrines of the First Amendment (including: government subsidy doctrine, government program doctrine, public forum doctrine, and commercial speech doctrine) were split four to four, but the full Court concurred in judgment that the Disparagement Clause would not pass the scrutiny required by any of the doctrines argued. AFFIRMED.